This article is a student op-ed piece from Professor Kim Wehle’s spring 2020 course “Advanced Constitutional Law: Democracy at Risk.” The Legislation and Policy Brief allowed the students to publish their writing on the blog if they wished. The blog pieces were edited by the Legislation and Policy Brief for grammatical and technical errors only, and they appear as they were written by the authors in April of 2020.
Student Author: Tom Eiler
In January of 2020, President Donald Trump unveiled a new “vision” of peace for the Middle East; specifically, resolving the dispute between Palestine and Israel. (https://www.whitehouse.gov/wp-content/uploads/2020/01/Peace-to-Prosperity-0120.pdf).This plan, decided quizzically without input from the Palestinians, sought a number of objectives. Beside the objectives, however, was a question of the legitimacy and legality of the devising of the plan itself. Specifically, Trump has once again bypassed Congress—and thus the Constitution itself.
According to Article II, Section 2, Clause 2 of the Constitution, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur….” (https://www.constituteproject.org/constitution/United_States_of_America_1992). Known as the Treaty Clause, this portion of the Constitution binds the President into a specific course of action when “making” treaties with other countries. In the course of devising the plan, titled “Peace to Prosperity,” President Trump has attempted to bind the United States by treaty to specific conduct that alters the course of traditional United States foreign policy.
Though “Peace to Prosperity” is touted as an “economic plan,” or sometimes as a “political plan,” it is plain to see through the language that the plan is an attempt to create a binding treaty without receipt of the advice and consent of the Senate. This has not been the first time that the legality of an international agreement that has circumvented the Treaty Clause of the Constitution has come under scrutiny. In Made in the USA Foundation v. US, the Eleventh Circuit was asked to analyze whether NAFTA was an international agreement that had to be recognized as a treaty. (Made in the USA Foundation v. U.S., 242 F.3d 1300 (11th Cir. 2001)). The court found that determining whether NAFTA was a treaty or not fell out of their jurisdiction as a political question. Id. The Eleventh Circuit found that there truly was no definition of what a treaty was, from the Supreme Court or otherwise, but that it had long recognized the ability of the executive and of congress to conclude international agreements that are not considered treaties in the constitutional sense.
That same opinion also raises the argument used by the appellant as to why NAFTA should have been deemed a treaty, stating:
“.…the appellants contend that the key distinction in the minds of the Framers in determining whether a given agreement required ratification as a treaty turned on the relative importance of the accord; significant agreements were to be deemed treaties, while less important ones were to be considered compacts or executive agreements.” Id.
This specific notion is further contextualized by the Eleventh Circuit in Made in the USA Foundation, which pointed out that Congress is as important to the foreign affairs, and therefore the treaty process, as the Executive branch is; as both branches make up what the Court calls the “political branches.” Id.
In applying this holding to the “Peace to Prosperity” plan, the United States is taking a predominant negotiator role as well as taking the position as the seemingly sole backer of the Israeli government. And it is doing so in the face of overwhelming international and domestic pressure against the dramatic proposals of the plan, which makes the agreement tantamount to an Article II treaty because of its dramatic importance.
The Supreme Court has a clearly laid out its own role in foreign affairs (Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918)). The Eleventh Circuit further enunciated that the judiciary has the power to invalidate international agreements that are unconstitutional, but reiterated the Supreme Court view that the power to make treaties and define what a treaty is belongs solely to the “political branches.” (Made in the USA Foundation v. U.S., 242 F.3d 1300 (11th Cir. 2001)). The Supreme Court has also explained that broad powers over foreign affairs are found in both the Legislative and Executive branches. Id. As such, an international agreement like the “Peace to Prosperity” plan, should have been brought before the Legislative branch, specifically the Senate, for at least some notice as prescribed by the Constitution.
So where does this leave President Trump’s plan? The Palestinians were never supportive of the plan after its announcement, so it is likely to fade into memory and become some imagined trophy for the President. (https://www.latimes.com/world/middleeast/la-fg-bahrain-israel-palestinians-kushner-20190625-story.html). The plan itself was a treaty that the Legislative branch should have been notified of when it was being devised. It should have also received a vote in the Senate before concluding the negotiations of the plan. In the age of a rampant presidency, a polarized legislature, and the daily political battles it may well be time for the Judicial branch to begin defining the interactions of the branches, including defining terms of unclear and broad meaning that go directly to the constitutionality of an action. Ultimately, it is President Trump who would benefit from a definition of what is a treaty, or else he will find that he has yet again crossed the boundaries set forth by the Constitution.